IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

C.P. No.S-83 of 2021

Petitioner: Ghulam Qadir Wadyo through Syed Zafar Ali Shah Bukhari, Advocate

Respondents No.2 to 4: M/s. Ali Gohar & Company (Pvt) Ltd and others through Mr. Ayaz Ali Noorani, advocate

State/Federation: Through Mr. Mumtaz Ali Gopang, Assistant Attorney General

Date of hearing: 22.04.2022

Date of decision: 16.05.2022

O R D E R

Zulfiqar Ali Sangi, J: Through this petition, the petitioner by invoking extraordinary jurisdiction under Article 199 of the Constitution of Pakistan 1973, has prayed for issuance of a writ in favour of Petitioner for compliance of order dated 27.08.2020 passed by Members of NIRC Bench at Sukkur; besides setting aside the orders dated 08.01.2021 and 25.02.2021, whereby contempt applications filed by petitioner for compliance of order dated 27.08.2020 were dismissed, hence this petition.

2. Succinct facts of the case are that the petitioner was employed as Helper/Loader in the office of Respondent No.4 and took a lump sum monthly salary of Rs.14000/-; however he has not been awarded allowances and benefits as of permanent employee. That thereafter petitioner was removed from service illegally and malafidely and paid Rs.4181 as his dues through cheques and in this regard petitioner filed a grievance petition under Section 33 of Industrial Relations Act, 2012 wherein he prayed for reinstatement in service with all back benefits since 13.05.2019, which was allowed in favour of the Petitioner and the same has not been challenged before the Full Bench by the concerned Respondents.

3. Learned Counsel for the Petitioner, at the very outset, submits that the learned Member Bench of NIRC has failed to comply with its order dated 27.08.2020 whereby the petitioner was reinstated with all back benefits since 13.05.2019. Learned Counsel next contended that when Respondent No.2 failed to comply with the order dated 13.05.2019, the petitioner moved a contempt application under Section 3 & 4 of Contempt of Courts Ordinance 2004 r/w Section 151 CPC for compliance of order but the same was dismissed, being not maintainable vide order dated 08.01.2021; that once again, petitioner filed another contempt application praying therein same relief; however the same was also met with same fate vide order dated 25.02.2021. Learned counsel further submitted that both orders passed by learned Member of NIRC Bench at Sukkur on contempt applications are illegal and unlawful, hence liable to be set aside. Lastly, he prayed that necessary directions be issued to Learned member of the NIRC Bench at Sukkur to comply with its order dated 27.08.2020. In support of his contention, he has relied upon Section 57(a)(b) of the Industrial Relations Act, 2012.

4. Learned Counsel representing the Respondents No.2 to 4 argued that this petition is not maintainable as if any order is passed by any Bench or the Commission, the same can only be challenged before Full Bench of NIRC within 30 days by an aggrieved person, hence this Court has no jurisdiction to interfere in view of Section 58 of Industrial Relations Act, 2012. Learned Counsel further contended that this petition merits no consideration and is liable to be dismissed.

5. Learned Assistant Attorney General, while adopting the arguments of learned counsel representing the Respondents No.2 to 4, submitted that petitioner can approach Full Bench of NIRC, being an alternate and appropriate remedy, for redressal of his grievance, if he feels aggrieved by any decision of Member of the Bench of NIRC.

6. I have heard learned Counsel for the petitioner, Counsel representing the Respondents No.2 to 4 and learned Assistant Attorney General as well and have perused the material available on record.

7. Perusal of record reflects that earlier petitioner filed a grievance petition before a Member Bench of NIRC at Sukkur, which was allowed in his favour as prayed vide order dated 27.08.2020 and the Respondent No.2 was directed to reinstate the petitioner in service with all back benefits w.e.f 13.05.2019; however Respondent failed to comply with such order and in this regard petitioner moved contempt applications before same learned Member Bench of NIRC for compliance of its order. Since contempt applications were heard and decided by a single bench of the Commission, who passed the impugned order, therefore, under Section 58(1) of IRA, 2012, the petitioner has a remedy before the Full Bench of the NIRC for challenging the same.

8. It shall be advantageous to reproduce Section 58 of the Industrial Relations Act, 2012 as follows:-

58.  Appeals.—(1) Notwithstanding anything contained in this Act, or in any other law for the time being in force, any person aggrieved by an award or decision given or a sentence or order determining and certifying a collective bargaining unit passed by any Bench of the Commission, may, within thirty days of such award, decision, sentence or order prefer an appeal to the Commission.

(2)  An appeal preferred to the Commission under sub-section (1) shall be disposed of by the Full Bench of the Commission which shall--

(a)     if the appeal is from an order determining and certifying a collective bargaining unit, have the power to confirm, set aside, vary or modify such an order.

(b)     if the appeal relates to any other matter, the Full Bench may, confirm, set aside, vary or modify the decision or sentence passed and shall exercise all the powers required for the disposal of an appeal.

(c)      The decision of the Full Bench shall be delivered as expeditiously as possible, within a period of sixty days following the filing of the appeal, provided that such decision shall not be rendered invalid by reasons of any delay in its delivery.

(d)     The Full Bench may, on its own motion at any time, call for the record of any case or proceedings under this Act in which a Bench within its jurisdiction has passed an order for the purpose of satisfying itself as to the correctness, legality, or propriety of such order, and may pass such order in relation thereto as it thinks fit:

            Provided that no order under this sub-section shall be passed revising or modifying any order adversely affecting any person without giving such person a reasonable opportunity of being heard.

9. In the case in hand, the petitioner, being aggrieved by orders passed by a Single Bench of the Commission, has a remedy before the Full Bench of Commission under Section 58(2)(b) and (d) but he had not availed such remedy and filed the instant Constitutional Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. Since the petitioner has an appropriate and alternate remedy against the impugned order passed by any learned Member Bench of NIRC before a Full Bench of the Commission as has been discussed above, therefore, the present writ petition under Article 199 of the Constitution is not maintainable.

10. In view of what has been discussed above, instant petition merits no consideration and is hereby dismissed; however, petitioner is at liberty to avail alternate/appropriate remedy against the impugned orders as provided under the law.

JUDGE